“County preemption” measure dies in committee
A bill that would have given the state broader authority to preempt county ordinances it finds inconvenient, such as those restricting biotech, failed to find enough support to pass through the senate agriculture committee.
The Hawaiʻi State Senate Committee on Agriculture (AGL) held public decision-making session on a controversial proposal to give the state the power to strike down certain county ordinances this afternoon. The contents of the proposal, as well as the motivation for its introduction and the process by which it was brought forward in committee all contributed to the controversy and drove high turnout to a legislative procedure that offers no public testimony and that many people normally skip.
AGL chair Senator Clarence Nishihara (Senate District 17, Waipahu, Mānana, Pearl City, Pacific Palisades) needed four out of seven votes from his committee to substantively amend a short-form bill, Senate Bill (SB) 110, and insert his desired language. However, with one committee member excused, the vote ended in a 3–3 tie, and the recommendation from the chair to adopt the amended language failed to pass.
That means the bill will not be recommended to the full senate for a vote and, baring a few unlikely legislative maneuvers, the proposal—which opponents have called the “county preemption” bill—is dead this year.
Nishihara’s proposed language for SB110 came from a different bill he and Senator Brickwood Galuteria (Senate District 12, Waikīkī, Ala Moana, Kakaʻako, McCully, Mōʻiliʻili) introduced: SB3058. The proposed language would have amended Hawaiʻi’s “Right to Farm” Act (Hawaiʻi Revised Statutes § 165 - 1–6) to “ensure that counties cannot enact laws, ordinances, or resolutions that limit the rights of farmers and ranchers to engage in modern farming and ranching practices.”
Counties vs Corporations
After both Hawaiʻi and Kauaʻi counties passed ordinances in 2013 restricting biotech operations, such as the use of highly toxic Restricted-Use Pesticides (RUPs) produced in conjunction with Genetically-Modified Organisms (GMOs) designed to withstand their toxic effects, biotech companies like Monsanto, Syngenta, BASF, Dow and DuPont Pioneer have increasingly pushed a public relations narrative that characterizes their operations as farming and food production as opposed to genetics research and chemical testing.
This narrative has been repeated throughout the legislative session by some elected officials—often ones with direct campaign contributions from those same multinational corporations.
Under these circumstances, anti-biotech advocates had good reason to believe that the “county preemption” bill was created as a direct response to their legislative wins at the county level. Further, their fears that the proposal would block counties from enacting any new laws to restrict the activities of multinational biotech companies and strike down the already-passed ordinances are valid.
These advocates had been keeping an eye on SB3058 and were relieved to see the bill receive a referral to three different senate committees (a “triple referral”) at the beginning of session. Bills that receive a triple referral are much less likely to make it through all the different steps of the process before deadlines end up killing them by default. In fact, triple referrals are often a sign that the legislative leadership team does not support the bill and is making it intentionally difficult for it to pass.
That sense of relief changed to a sense of urgency when Senator Nishihara suddenly scheduled the amended version of SB110 for decision-making. Even with less than 48-hours notice (another gripe some advocates had with the process), the crowd at the decision-making hearing spilled out into the Capitol hallway.
Activists like Walter Ritte of Molokai and Kauaʻi County Council Member and former state senator Gary Hooser flew in to Oʻahu to be present. Both have been influential in supporting restrictions on the operations of biotech companies in Hawaiʻi, which they view as exploitative. A bill similar to the ones passed in Hawaiʻi and Kauaʻi counties has been introduced by Maui County Council Member Elle Cochran.
“They’re not farmers,” said Ritte at the “People Not Profits” rally last week, referring to biotech firms. “They pretend to be farmers while their allies in the legislature try to pass a bill that would eliminate the counties’ ability to determine their own future. It’s an attack on home rule.”
“That’s what it comes down to,” echoed Hooser, a co-sponsor of the piece of Kauaʻi legislation Nishihara’s proposal would overturn. “It’s about protecting county rights.”
Senator Nishihara disagreed, saying that his proposal was about science and good agricultural practices.
“Although the counties feel they are being preempted, my sense of it is that if the counties really had the wherewithal in their agencies of government or the resources therein, and they could expedite these measures—one way or the other—then they wouldn’t have to come hat in hand to the state to the say ‘we need support; we need the money to do this; we want you to do this,’” he began.
“Unfortunately, no matter what the vote is, this isn’t going to end today,” Nishihara continued. “This is an issue that has gone worldwide, and it’s about the science of it. It’s about what is considered good, modern agricultural practices. Some people’s concepts of what is modern agriculture exclude any type of technology that enhances the production of food. As a result GMOs are a ‘no-no.’ In the scientific community the preponderance of data and studies say that it is a safe technology. But there will always be people who believe that technology is dangerous.”
Advocates also raised concerns over the legislative maneuver Senator Nishihara used to insert the language from SB3058 into SB110, calling it a “gut-and-replace” tactic and “a sneak attack.” Nishihara said it was simply another way of making sure his original proposal was heard.
Because the state constitution mandates that a bill’s substance has to match its title, short-form bills like SB110 are given broad titles (such as “relating to agriculture”) and left essentially empty in case committee chairs need an extra legislative vehicle to advance an idea at some point in session. The practice is both allowed by the rules and not entirely uncommon—legislators can only introduce so many bills each session, but they’re free to use some of those slots for short-form bills.
In a gut-and-replace maneuver, a committee chair strips out a bill’s contents (often not one they introduced themselves) and inserts entirely new language, sometimes that only very loosely relates to the original title, which must stay the same. However, because short form bills are already basically empty, and are specifically designed to be used this way, Nishihara’s maneuver is one step short of a true gut-and-replace.
Breaking Down The Vote
After some discussion, it came time to take the vote. Senators J. Kalani English (Senate District 7, Hana, East and Upcountry Maui, Molokai, Lānaʻi and Kahoʻolawe), Laura Thielen (Senate District 25, Kailua, Lanikai, Enchanted Lake, Maunawili, Waimānalo, Hawaiʻi Kai) and the agriculture committee vice chair, Ronald Kouchi of Kauaʻi (Senate District 8, Kauaʻi, Niʻihau), voted against the measure. It’s unusual in the Hawaiʻi State Legislature for a committee chair’s recommendation to fail.
“I’m going to be voting no on this procedural vote, mainly because I support county rule,” explained English. “The counties need to be able to make their own decisions and have home rule. I think this is a slippery slope. What will we preempt the counties on in the future? Sub divisions? Land use? What we feel here at the state level when the federal government preempts us is the same way the counties feel.”
Senators Nishihara, Sam Slom (Senate District 9, Hawaiʻi Kai, Kuliʻouʻou, Niu, ʻĀina Haina, Waiʻalae-Kahala, Diamond Head) and Donovan Dela Cruz (Senate District 22, Mililani Mauka, Waipiʻo Acres, Wahiawā, Whitmore Village) voted yes.
Senator Slom said he voted yes only because he wanted to have a public hearing and allow testimony from both sides to be heard.
While Senator Dela Cruz did not provide any reasoning for his vote, his district includes a good deal of industrial-scale agriculture that partially supports the community economically. Dela Cruz has been vocal about plans to develop further agricultural projects in the district, and is a fan of public-private partnerships and other privatization models that could potentially involve the biotech corporations.
On the other hand, Senators Kouchi and English occupy districts in which support for biotech restrictions has surged in recent years. Kouchi holds the seat that Kauaʻi County Council Member Hooser used to occupy, while English holds the seat that includes Molokai, Walter Ritte’s base.
Both districts include heavily Native Hawaiian communities in which the call to Aloha ʻĀina often connects rather easily with opposition to multinational corporations that profit off the land, weather and other resources of Hawaiʻi while contributing rather little in exchange. Rents on the state land the biotech corporations occupy is often next to nothing, and both the amount of actual food crops they produce and the number of good-paying, full-time jobs they generate is a lot less than you’d expect in exchange for the discount.
During the 2012 election cycle, Monsanto—the largest of the biotech operations in Hawaiʻi, at least by footprint—donated $1,500 to Dela Cruz and $1,000 to Nishihara.
Dela Cruz also received $500 each from the Dow Chemical Agricultural Executive PAC and Syngenta Crop Protection LLC, as well as another $450 from Syngenta Seeds, Inc. Nishihara received $500 from Syngenta Crop Protection LLC, while Slom received $300 from Dupont.
Senator Kouchi received $1,000 from Monsanto, $500 from Syngenta Hawaiʻi, LLC and $500 from Dupont.
Senators English and Thielen received no money from seed or chemical companies during the 2012 cycle.
The seventh member of the committee, Glenn Wakai (Senate District 15, Kalihi, Māpunapuna, Salt Lake, Āliamanu, Foster Village, Hickam, Pearl Harbor), was absent from the hearing. He received $500 from Monsanto in 2012. It’s not a sure thing which way he would have voted, but with a small donation from the biotech industry, a proportionally much smaller Aloha ʻĀina constituency to worry about, and a general affinity for technology and industry, anti-biotech advocates are probably pretty glad he was excused today, or the county preemption concept may very well have advanced to the full senate.
